Reply Brief — Globe Newspaper Co. v. Superior Court for the County of Norfolk

r _ Supreme Court, U. S.

as FILED

SEP 20 1980

No. 79-1862. MICHAEL RODAK, JR.. CLERK

In the

Supreme Court of the United States.

Ocroser TERM, 1980.

GLOBE NEWSPAPER COMPANY,

Appellant,

v.

THE SUPERIOR COURT

FOR THE COUNTY OF NORFOLK,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Brief in Opposition to Motion to Dismiss.

James F, McHucu,

Rosert Haypock, Jr.,

Amy COHEN,

BINGHAM, Dana & GouLp,

100 Federal Street,

Boston, Massachusetts 02110.

(617) 357-9300

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

Table of Authorities Cited.

CASES.

Board of Trustees v. Sweeney, 439 U.S. 24 (1978) 4

Bradley v. Richmond School Board, 416 U.S. 696

(1974) 4

County of Los Angeles v. Davis, 440 U.S. 625 (1979) 3,5

Diffenderfer v. Central Baptist Church, 404 U.S. 412

(1972)

7

Hamling v. United States, 418 U.S. 87 (1974) 4

Harlin v. Missouri, 439 U.S. 459 (1979) 4

Healey v. James, 408 U.S. 169 (1972) 5

Oregon State Penitentiary v. Hammer, 434 U.S. 945

(1977) 4

Rescue Army v. Municipal Court of Los Angeles, 331

U.S. 549 (1947) 7n

Richmond Newspapers, Inc. v. Commonwealth of Vir-

ginia, 48 U.S.L.W. 5008 (July 2, 1980) (No. 79-

243) passim

Sanks v. Georgia, 401 U.S. 144 (1971) 7n

SEC v. Sloan, 436 U.S. 103 (1978) 3,5

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546 (1975) 5

Southern Pacific Terminal Co. v. Interstate Commerce

Commission, 219 U.S. 498 (1911) 3,5

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115

(1974) 6

Thorpe v. Housing Authority, 386 U.S. 670 (1967) 4

ii TABLE OF AUTHORITIES CITED.

United States v. Furehauf, 365 U.S. 146 (1961)

United States v. Schooner Peggy, 1 Cranch (5 U.S.) 103

(1801)

Village of Schaumberg v. Citizens for a Better Envi-

ronment, 444 U.S. ___, 48 U.S.L.W. 4162 (Febru-

ary 20, 1980) (No. 78-1335)

Weinstein v. Bradford, 423 U.S. 147 (1975)

STATUTES.

United States Constitution

First Amendment

Mass. G.L. c. 278, § 16A

7n

3,4

No. 79-1862.

In the

Supreme Court of the United States.

Ocroser TERM, 1980.

GLOBE NEWSPAPER COMPANY,

Appellant,

v.

THE SUPERIOR COURT

FOR THE COUNTY OF NORFOLK,

APPELLEE.

ON APPEAL FROM THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS.

Brief in Opposition to Motion to Dismiss.

Pursuant to Rule 16.5 of the current rules of this Court, ap-

pellant, The Globe Newspaper Company, submits this brief in

opposition to the Motion to Dismiss filed by appellee. Appel-

lant does so for the purpose of addressing appellee’s assertion

that this case has been rendered moot by this Court’s decision

2

in Richmond Newspapers, Inc. v. Commonwee::h of Virgin-

ia, 48 U.S.L.W. 5008 (July 2, 1980) (No. 79-243).'

Three equally-unavailing arguments are presented by ap-

pellee in support of its contention that the present case is moot.

First is the argument that the decision of the Supreme Judicial

Court for the Commonwealth of Massachusetts from which

this appeal is taken “substantially constricted the operation of”

Mass. G.L. c. 278, § 16A, the statute which the appeal con-

cerns (Motion to Dismiss at 3). As a result, appellee argues,

“the Globe now stands in a far better position as a result of the

decision below, and no longer cenfronts the certain and recur-

rent prospect of complete exclusion from the whole of a trial of

a sexual offense against a minor victim... .” (Id. at 4.)

True it is that the decision from which the present appeal is

taken narrowed the sweep of § 16A. True it also is, however,

that, even as narrowed, § 16A requires exclusion of the press

and public from part of each and every trial to which the stat-

ute applies. Even as narrowed, the statute admits of no dis-

cretion on the part of the individual trial judges to allow any-

one into the courtroom while critical testimony is being prof-

fered. Even as narrowed, the statute permits no account to be

taken, for example, of the victim’s desire to testify in public, of

the age and apparent maturity of the victim, of the type of

“crime involving sex” with which the defendant is charged or

of a host of other factors which might well make the partial

closure mandated by § 16A inappropriate. Even as narrowed,

‘In addition to arguing that the case is moot, appellee argues that it pre-

sents no substantial federal question and that the appeal should be dismissed

for that reason as well. That substantial federal questions are presented by

this appeal was demonstrated in the Jurisdictional Statement. That substan-

tial federal questions are present also is a conclusion which clearly emerges

from a comparison of the issues presented by this case with those decided in

Richmond Newspapers. As a consequence, no further time will be spent on

that issue on this brief.

3

in sum, § 16A permits no inquiry of the type which this Court

held in Richmond Newspapers was a necessary precondition to

any valid order of closure in light of the command of the First

Amendment to the Constitution. Richmond Newspapers,

Inc. v. Commonwealth of Virginia, 48 U.S.L.W. 5008, 5015

(July 2, 1980) (No. 79-243).

The fact that the decision of the Supreme Judicial Court

may have left appellant in a somewhat better position than it

was at the commencement of this litigation, then, does not

mean that the present appeal is moot. Compare, e.g., County

of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (a case is

moot if, inter alia, “interim relief or events have completely

and irrevocably eradicated the effects of the alleged

violation”); SEC v. Sloan, 436 U.S. 103, 109-10 (1978). To be

sure, the Supreme Judicial Court’s decision potentially reduces

the magnitude of the asserted violation of appellant’s rights

which is “capable of repetition, yet evading review.” South-

ern Pacific Terminal Co. v. Interstate Commerce Commis-

sion, 219 U.S. 498, 515 (1911). That decision does not, how-

ever, reduce the certainty that appellant will be excluded in

the future from at least a portion of a criminal trial by virtue of

§ 16A. In addition, the decision does not increase the likeli-

hood that appellant’s opportunity to litigate fully the propri-

ety of any future exclusion will be more satisfactory than the

insufficient opportunity it had in the present case. Compare,

e.g., Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Rich-

mond Newspapers, Inc. v. Commonwealth of Virginia, 48

U.S.L.W. 5008, 5010 (July 2, 1980) (No. 79-243).

Appellee’s second argument in support of its assertion that

the present case is moot is somewhat difficult to follow. Es-

sentially, however, that argument appears to consist of two

parts. The first is that the Supreme Judicial Court “never had

the opportunity to judge [the constitutionality of] § 16A in

light of the First Amendment right of the press to attend crimi-

4

nal trials as declared in the Richmond Newspapers decision.”

(Motion to Dismiss at 5.) Second, the argument continues, be-

cause the Supreme Judicial Court did not have that opportuni-

ty, no one can reasonably predict what it will do when it does

and thus no reasoned conclusion now can be reached concern-

ing the results of the next constitutional challenge to the stat-

ute (id. at 5-6).

Three answers to appellee’s argument immediately appear.

First, although it is clear that the Supreme Judicial Court ren-

dered its decision in the present case prior to this Court’s deci-

sion in Richmond Newspapers and thus did not have an oppor-

tunity to consider the views expressed by this Court in Rich-

mond Newspapers, the Supreme Judicial Court clearly had an

opportunity to consider, and was requested to consider, the

First Amendment contentions made by appellant. It expressly

declined to do so (App. 33a). For present purposes, the

Court’s decision not to consider those contentions amounts to a

judgment that no such rights existed. See Jurisdictional State-

ment at 9-10.

Second, when a change in the law has occurred during the

process which brings a case to this Court, this Court’s virtually

uniform practice has been either to apply to that case the law .

in existence at the time the appeal is decided by this Court,

e.g., Hamling v. United States, 418 U.S. 87, 102 (1974); Brad-

ley v. Richmond School Board, 416 U.S. 696, 711-15 (1974);

United States v. Schooner Peggy, 1 Cranch (5 U.S.) 103, 110

(1801), or to reverse and remand the case to the tribunal from

which it came for reconsideration in light of the new legal de-

velopment. E.g., Harlin v. Missouri, 439 U.S. 459 (1979);

Board of Trustees v. Sweeney, 439 U.S. 24 (1978); Oregon

State Penitentiary v. Hammer, 434 U.S. 945 (1977); Thorpe v.

Housing Authority, 386 U.S. 670 (1967). Passing the question

whether Richmond Newspapers announced “new” law, com-

pare, e.g., 48 U.S.L.W. at 5015 (Stevens, J., concurring)

5

with, e.g., Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546 (1975); Healy v. James, 408 U.S. 169 (1972), the fact

that the Supreme Judicial Court did not have before it this

Court’s decision in Richmond Newspapers in February of 1980

supports at most a conclusion that reversal and remand is in

order. It does not support a conclusion that the case is moot.

Third, and finally, the assertion that no one can predict

what the Supreme Judicial Court for the Commonwealth will

do when it next confronts the issue of the constitutionality of

§ 16A as narrowed, far from supporting appellee’s assertion

that the case is moot, supports appellant’s assertion that it is

not. This Court, for sound reasons, has held that an essential

ingredient of mootness is an ability to say “with assurance that

‘there is no reasonable expectation . . .’ that the alleged viola-

tion will recur.” County of Los Angeles v. Davis, 440 U.S.

625, 631 (1979). So formulated, what might be called the

burden of prediction is cast on the party who seeks to have the

proceeding dismissed as moot. It is cast on that party because

any other allocation of the burden could well result in the in-

vincibly repetitive violations of constitutional rights the moot-

ness principles articulated in Southern Pacific Terminal Co. v.

Interstate Commerce Commission, 219 U.S. 498, 515 (1911)

were designed to avoid. See generally, SEC v. Sloan, 436 U.S.

103, 109-10 (1978). Consequently, appellee’s assertion con-

cerning an inability to predict what the Supreme Judicial

Court will do the next time it is faced with a question concern-

ing the constitutionality of § 16A as narrowed is, quite simply,

an assertion that the present case is not moot.

As a final argument concerning mootness, appellee asserts

that the issues tendered to this Court after the decision of the

Supreme Judicial Court are abstract and hypothetical (Motion

to Dismiss at 6). Not so. The Supreme Judicial Court’s de-

cision concerning the mandatory aspect of § 16A had the effect

of affirming the trial court’s order excluding appellant from a

6

specific portion of a specific criminal trial over the timely pro-

test of both appellant and the defendant in the criminal case.

The Supreme Judicial Court’s decision also approved of that

exclusion even though there had been no particularized “over-

riding interest articulated in findings” for excluding the press

and public from that particular trial. Compare, Richmond

Newspapers, Inc. v. Commonwealth of Virginia, 48

U.S.L.W. 5008, 5015 (July 2, 1980) (No. 79-243). It is diffi-

cult, therefore, to see how the issue appellant has raised con-

cerning the mandatory portion of § 16A could be less hypo-

thetical or less abstract.

Similarly, insofar as § 16A, as construed, invests the trial

court with discretionary authority to close all or portions of

certain criminal trials to the press and public when the victim

is not testifying, the controversy presented to this Court is

neither abstract nor hypothetical. To be sure, the standard

for discretionary closure — whether closure is “necessary . . .

to preserve evidence required for a just conviction,” (App.

44a) — was not applied to appellant because appellant was

summarily excluded from the entire trial under what appeared

to be the statute’s global force. Nevertheless, the question to

be addressed now, in the wake of the Supreme Judicial Court’s

opinion and in the wake of this Court’s opinion in Richmond

Newspapers, is whether the standard for discretionary closure

articulated by the Supreme Judicial Court constitutes the kind

of “overriding interest” which this Court has said will alone

provide a foundation for constitutionally-permissible closure.

Appellant, of course, argues that it does not. More important

for present purposes, however, is the fact that the “continuing

and brooding presence” of that standard inevitably will affect

the future ability of appellant to gain access to criminal trials.

Compare, Super Tire Engineering Co. v. McCorkle, 416 U.S.

115, 122, 125-26 (1974). Beyond that, application of the

standard to appellant may well produce irreparable injury, for

7

if the question concerning the propriety of the standard is not

resolved now, appellant will be required to suffer exclusion

from at least one more criminal trial before its rights can be

vindicated. See generally, Village of Schaumberg v. Citizens

for a Better Environment, 444 U.S. ___ , 48 U.S.L.W. 4162,

4165 (February 20, 1980) (No. 78-1335); Diffenderfer v. Cen-

tral Baptist Church, 404 U.S. 412, 414 (1972). In sum, the

controversy over the discretionary aspect of § 16A as construed

by the Supreme Judicial Court is not moot.*

*The cases cited by appellee in support of its third theory of mootness are

all distinguishable. This Court dismissed the appeal in Rescue Army v.

Municipal Court of Los Angeles, 331 U.S. 549, 575 (1947), because the pro-

cedural context for the state court’s discussion of the statute at issue rendered

that discussion so unclear and confusing that this Court was unable to deter-

mine how that statute had actually been construed. In the instant case, there

is no similar ambiguity in the Supreme Judicial Court’s explication of § 16A.

In Sanks v. Georgia, 401 U.S. 144 (1971), the appeal was dismissed because

the statute originally contested had been repealed and replaced by a new

statute which eliminated the constitutional problem presented; in the case at

hand, significant constitutional problems inherent in the statute remain.

Finally, the Court’s decision in United States v. Fruehauf, 365 U.S. 146

(1961), is also distinguishable in that, unlike the complicated factual and

legal question presented there, this appeal presents a straightforward ques-

tion of whether the statute as construed by the Supreme Judicial Court can

survive constitutional scrutiny.

8

Conclusion.

For the foregoing reasons, and for the reasons discussed in

the Jurisdictional Statement, appellant respectfully requests

that the Motion to Dismiss be denied and that probable juris-

diction be noted.

Respectfully submitted,

JAMES F. McHUGH,

ROBERT HAYDOCK, JR.,

AMY B. COHEN,

BINGHAM, DANA & GOULD,

100 Federal Street,

Boston, Massachusetts 02110.

(617) 357-9300